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Notes -
In other SCOTUS news, we have four more opinions published today.
Two of the cases involve very similar issues--Section 1983 claims for retaliatory arrest and malicious prosecution--but for some reason the breakdown of Justices is different.
Gonzales v. Trevino: A per curiam opinion, with separate concurrences by Alito, Jackson, and Kavanaugh, and a dissent by Thomas. Gonzales was arrested and charged with stealing government documents, based on her allegedly attempting to make off with a city council petition (possibly to cover up that she obtained some of the signatures on the petition under false pretenses). Alito's concurrence helpfully summarizes the facts of the case, and, in an unusual move, even includes links to Youtube videos of the incident! (Here and here, for your viewing pleasure). Gonzales admits that there was probable cause to arrest her, but she claimed her arrest was in retaliation for her protected speech criticizing other city officials. The relevant precedent, Nieves v. Bartlett, says that probable cause defeats a retaliatory arrest claim unless the arrestee can show that other people, who allegedly committed the same crime, were not arrested (which would imply that the arrest was motivated by the arrestee's speech, rather then genuine law enforcement concerns). Gonzales presented evidence that other people ... had been arrested, for slightly different crimes, but nobody had been arrested for doing exactly what she allegedly did (with no evidence that anyone else had ever tried to do exactly what she allegedly did). To me, this evidence seems irrelevant to the Nieves exception, which requires a showing that similarly-situated people were treated differently, which is not what Gonzales' evidence showed. But the majority decided it was good enough to, at least, merit further consideration by the lower court.
Chiaverini v. City of Napoleon: Kagan writes for the majority, Thomas dissents joined by Alito, Gorsuch writes his own dissent. A jewelry store owner allegedly bought a stolen ring. He was charged with receiving stolen property, dealing in precious metals without a license, and money laundering. Prosecutors later dropped the charges. Chiaverini brought a 1983 claim for malicious prosecution--which, again, requires proof that the government lacked probable cause to arrest him. The lower court threw out his claim because the first two charges were "clearly" supported by probable cause, even if the money laundering charge was not. The Supreme Court reversed, holding that if even one of the charges was not supported by probable cause, Chiaverini could have a valid claim. Both Thomas and Gorsuch, in dissent, seem to agree that malicious prosecution is not properly considered a constitutional claim for section 1983 purposes--the main difference is that Gorsuch relies on an opinion he wrote while a judge on the 10th circuit Court of Appeals.
Diaz v. United States: A case about expert witnesses in criminal trials. The most interesting thing about this case is that Thomas wrote the majority opinion, Jackson concurred, and Gorsuch wrote the dissent, joined by Sotomayor and Kagan.
Moore v. United States: A mind-numbing income tax case. Kavanaugh wrote the majority opinion, Jackson concurred, Barrett concurred joined by Alito, and Thomas dissented alone as is his wont. Most interesting to me, however, is the publication of a "statement" by Justice Alito, concerning Senator Richard Durbin's sending a letter to Chief Justice Roberts "urging" him to "ensure" that Alito recuse himself in the case. Durbin's letter was ostensibly based on the view that Alito could not be trusted to decide the case without bias, because David B. Rivkin, an attorney for the Petitioners in the case, once interviewed Alito for the Wall Street Journal. Alito points out that the mere fact he was interviewed does not give rise to a presumption of bias. In addition, he points out that Durbin's letter seems like a suspiciously isolated demand for recusal: Alito provides a half-dozen footnotes detailing the numerous times his colleagues on the Court have been interviewed by media companies and then gone on to decide cases wherein those media companies were parties. I had fun reading this, but I'm sure politicians will continue making baseless demands for recusal on similarly flimsy pretexts.
Man, Thomas is really feeling the dissonance, I guess. Is that more than anyone else, including Alito? Or is it just more prominent because he often writes dissents whenever he can, even if he doesn't have to?
Thomas frequently writes dissents or concurrences calling for more radical changes (to him, reversions) in the law than the other justices are willing to accept or take into consideration in whatever the case may be.
Looking here it seems like seems to dissent the most out of the conservative justices, and in many years the most total, though less now since the court became more solidly conservative.
Very cool link!
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I still have one case left to give thoughts on from Thursday, and all five from Friday. Here's one of each.
Moore v. United States
7-2. Opinion by Kavanaugh, signed onto by Roberts and the liberals. A concurrence by Jackson. Concurrence in the judgment by Barrett, signed onto by Alito. And a dissent by Thomas, joined by Gorsuch.
The question here is about the constitutionality of taxation. The specific context is from the tax cuts and jobs act of 2017, in the mandatory repatriation tax (MRT), wherein individuals were taxed for (undistributed) income of the foreign corporations that they owned shares in.
A handy summary I ran across of the various opinions:
Some relevant tax background: in the United States, there are two types of taxes: direct and indirect. Roughly speaking, direct taxes are taxes on things, indirect on transactions. The Constitution says that direct taxes cannot be passed by Congress unless apportioned among the states by the states' population. This turns out to be inconvenient, as most types of direct tax, like property taxes, do not scale purely with population, so such a tax would need to have different taxes at different locations. Hence, why there's no federal property tax, and taxes of this kind in general are avoided. Indirect taxes, on the other hand, only need to be uniform between states. This is much easier and more natural to do. Additionally, the 16th amendment authorizes taxation of income from whatever source.
The Moores argued two claims at the lower levels: first, that the MRT is a direct tax, because it taxes unrealized income. Second, that the retroactivity of the tax violates due process. But at the supreme court, they only argue the first issue.
Kavanaugh argues that the income is definitely realized, as it has been realized by the corporation, so there's no need to address whether realization is necessary for an income tax. Rather, he argues mainly about attribution. There's a long history to some things being taxed "on a pass-through basis," where income is attributed to individuals, regardless of whether it has been distributed to them. One example is in partnerships: the individual partners are taxed on them, rather than the partnership itself. Kavanaugh argues that this is just that, and that the Moores don't make any convincing case that this law is different from other taxes that they acknowledge are constitutional. Kavanaugh emphasizes also the limitedness of this decision more than once, saying that they rule only on "(i) taxation of the shareholders of an entity, (ii) on the undistributed income realized by the entity, (iii) which has been attributed to the shareholders, (iv) when the entity itself has not been taxed on that income. In other words, our holding applies when Congress treats the entity as a pass-through," and makes very clear that he is not here addressing about several other sorts of taxes, that the government had made arguments that they would be fine, such as a wealth tax.
Jackson, concurring, writes to argue that there are several further steps to striking down a tax, were that ever to happen: first, they would need to show that realization is necessary, (which she thinks is wrong, as that isn't in the text of the 16th amendment, and argues that the wording there was broad enough), and secondly that the tax was a direct tax, which she also interprets narrowly. She also argues that the Court should limit itself, pointing to the backlash over Pollock (which had classified some sorts of income taxes as direct) and the passing of the 16th amendment as an instructive lesson.
Barrett, joined by Alito, concur in the judgment. They argue that the Sixteenth amendment requires realization, when it says "derived from any source," means the same time by derived as what realized means—both are used when talking about "profits from capital." Barrett then argues that they have not realized income from their shares—"they have not 'derived' income from their shares because nothing has come in." She argues that the government is wrong in its argument that a tax on unrealized gains would be fine, like looking at a property's appreciation, because the person hasn't actually received the value yet, and the market could still change things before they actually receive any benefit from it. But the corporation they owned shares in did realize that income. Barrett argues from there differently than Kavanaugh did, though, saying that what is actually happening in the precedent cited, is that the past cases "allow Congress to disregard the corporate form to determine whether the shareholder received income in substance, if not in form."—that is, Barrett thinks that whether it's allowed to be taxed does not depend as much upon what structure it's legally in, but what structure it's functioning as, so in the case of foreign corporations set up as tax shelters, for example, it's fine to attribute and tax the shareholders of them. Barrett argues that attribution is limited constitutionally, due to the Due Process clause, and also in the 16th amendment, and that were that not the case, it could be abused. (There's an example involving Ford trucks that I don't follow.) But she declines to actually try to work out what the exact boundaries should be, since no one brought it up adequately. She agrees with Kavanaugh that the MRT (what's being ruled on) is pretty much the same as subpart F (what the Moores argued was fine and different). And so, the Moores haven't persuaded, and that's that.
Thomas dissents, with Gorsuch (EDIT: not alone, contra what was said above), because the taxes have not been realized. He also rejects attribution. He goes on a lengthy exposition on the history of taxation in relation to the Constitution, from the time of the articles of confederation, through to the passage of the 16th amendment. It's good, and of the cases I've read over the past few weeks, it's the single thing most worth reading more broadly speaking. He argues for a fairly narrow reading of what the 16th amendment does. He argues that Pollock revised the meaning of direct and indirect taxes, disagreeing with the civil-war era consensus (where only head taxes and land taxes were direct) and connected incomes to the source of those incomes—they would be direct or indirect if taxation upon the source would be direct or indirect. The 16th amendment then removes the source component, and makes it always indirect. Thomas agrees that realization is required, for the same reasons as Barrett. Thomas rejects the arguments the majority made on behalf of attribution, though in several cases for different reasons than Barrett does. He comes to roughly the same conclusion as she does (though she had chosen not to lay down any clear rule): "At most, the cases cited by the majority demonstrate that Congress may attribute income to the entity or individual who actually controlled it when necessary to defeat attempts to evade tax liability." Thomas argues that Subpart F is different MRT, because Subpart F deals only with income in that year, whereas the MRT does not care whether the shareholder had the corporation at the time of the earning, and does not really have a good reason for it to be considered income. He declines to say whether it is unconstitutional, but does think that it is meaningfully different. Thomas rejects the consequentialism of the majority in their mentioning the large amount of tax revenue that would be lost.
The 7-2 does not reveal what the true division of the court is on these questions. Barrett and Alito are quite close in their views to Thomas and Gorsuch. Kavanaugh and company are a bit further, because they endorse an attribution standard. Jackson clearly has a much broader view of what taxation should be allowed, compared to Kavanaugh who made very clear how limited this ruling was in what it allowed.
It was also interesting to consider that the government was attempting to push the ability for them to bring about future taxes. I found Barrett and Thomas more convincing myself, but I am glad that the majority made clear that this is not inviting taxes on unrealized gains.
From Friday:
Smith v. Arizona
9-0, opinion by Kagan, joined by Sotomayor, Kavanaugh, Barrett, and Jackson, and in part by Thomas and Gorsuch. Thomas and Gorsuch each wrote an opinion concurring in part. Alito wrote an opinion concurring in the judgment, which Roberts joined.
This case is about the 6th amendment, specifically the confrontation clause. The accused in a trial has the right to be confronted with the witnesses against him. This case is about experts, specifically, an absent lab analyst. Some chemicals were analyzed to be drugs, the analyst was unavailable for the trial, so someone else answered questions, following the notes. Kagan argues that it's testimonial, and that it's hearsay (is relevant for the truth), and therefore the confrontation clause applies. Gorsuch and Thomas both aren't sure that it's testimonial.
Thomas would not have the court look at the "primary purpose" of each statement, as Kagan had suggested, but rather would refer it to being about it being a solemn declaration, referring all the way back to Queen Mary of England. Yes, before the colonies. Making the appropriate rule whether it's similar in solemnity to that.
Gorsuch wants a better opportunity to consider what it means to have it be testimonial, and isn't a fan of the "primary purpose" test recommended by Kagan.
Alito, joined by Roberts argues against the opinion. He talks at length about how, up until several decades ago, experts used to have to couch everything in hypotheticals, and how that was horrible for a bunch of reasons. The Federal rules of evidence made things much better, with instructions to the jury instead to ignore portions of things, or only apply testimony to a given purpose. He sees this as at risk of leading back to hypothetical-land, and would prefer to lean on instructions to the jury. He also would affirm that not all testimony is hearsay, or for the purpose of the truth of the facts involved.
I'll be back sometime later, with the other four from Friday.
My main man comes through again! “Collectivists hate this one weird trick.”
I’d love a thorough unpacking of his opinion in this case. Where might I find it without having to sign up for something?
Well, you can just read it, as it's only thirty pages or so, and those are pages with large margins. I linked it at the start of the comment, but here it is again. It's the last one.
I imagine scotusblog has also summarized the case, but that would be something like the length I had, not an in depth analysis.
I just noticed your flair is relevant. How does the fairtax proposal work?
Thanks for the PDF! Here's a summary of the FairTax proposal.
America's current income tax system is a vast and arcane compromise between taxing economic activity to pay for necessary services which enable that activity and finding unescapable means of confiscating the wealth of those who can most afford to see it gone in order to help those without the opportunities the rich have had. Thus, it ends up
By being produced in a jurisdiction in which income is taxed, every product and service has some dollar amount built into its price which ends up in the hands of the government, that is, in the hands of the well-pensioned union of taxmen of the IRS. The hamburger I purchased today cost me $11 of my own post-tax income, and some 20-30% of that $11 is "embedded taxes":
Each of these individuals is at risk of underpaying the government, at which point men with guns will come to their homes and take them to a holding cell.
Imagine if, instead of having three hundred million potential tax cheats to monitor and prosecute, the government revenue service only had some two to ten million, all of them business owners and accountants and none of them laborers.
Imagine all IRS agents going into retirement and the Sixteenth Amendment riding off into the sunset, never to be seen again, all replaced by an automatic and easy-to-comprehend tax system which is the fairest ever devised by men.
Imagine if you paid the same amount for goods and services, paid the "embedded taxes" you were already paying for, but no money came out of your payroll for taxes.
Imagine never being at risk of tax fraud, not even for investments or selling your own property.
Imagine getting a monthly tax refund of 100% of the taxes you've paid the government.
The FairTax proposal has six moving parts:
The last part, the prebate, is what keeps this consumption tax from being regressive. The middle class buy more due to a more expansive lifestyle, and the investment class buy a huge amount more; they'll pay a lot more to the government than $300 each month, but both get the same flat $250-$300/mo. prebate. The 1% of the 1% might not even bother registering for such a relatively miniscule rebate, and the government gets to keep it. Meanwhile, it would be a source of direct income to the homeless and indigent, who could sign up for a bank account with their FairTax registration and direct deposit.
There are lots of arguments against the FairTax, but most of them are based on misunderstandings of one of the six moving parts above. I've collected exactly three cogent arguments against, which is a lot less than any other system, even Georgism.
(On a slight tangent, excluding groceries from sales taxes is surprisingly regressive.)
One thing that comes to mind is that is would distort the allocation of labor towards less productive activities that were exempt from tax (such as repair of an existing house) as compared to one that was subject to tax (such as building a new house).
The services of the contractor repairing the old house would be FairTaxed, as would services on old cars, tailoring of old clothes, and tenant remodeling for business suites in old business buildings. It’s only tax-free if you buy the thing and repair it yourself.
Also, why would repaired items be considered less productive? They use less resources to be restored to the same utility as a new thing. Unless you’re talking GDP-style metrics?
How could that work? You said resold items are exempt.
I can sell my house to the plumber tax free, he can work on it (of course, paying FairTax on everything he buys from HomeDepot) and then sell it back to me for more, again, no tax. The difference in price minus the difference in supplies he purchased is the value-add from his skilled labor, which is untaxed.
They do use less resources, but they use much more labor per unit output because they don't have nearly the economies of scale. Or if you prefer more formally, labor is a kind of resource which is in a substitute relationship with physical resources.
This is not to say that repairing is bad! In many cases it makes sense, it's only that the tax system shouldn't have such a strong preference because it's distorting.
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First off restoring old things can be less productive than new things. They have components that don’t fit with new standards and working around them would be low productivity. Also factories are just more productive than one off jobs. So it’s not just GDP-style metrics.
Second, you would have a whole issue dealing with what’s new and what’s old. In an extreme example say your building a 70-story condo building and replacing an old bodega. Is it new or old if you build the new connecting and on top of the old? So you say that’s obvious new and that is maybe easy to define but you would have a huge scale of nuances to figure out the line. Which in other areas we deal with but there is going to be a gamification line.
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My thoughts and concerns on the points:
Alright, some overall thoughts. The main thing here seems to be a shift of everything to a sales tax on the selling of new goods. This is distortionary, but I don't know that I mind lowering consumption? I would want to know how you'd handle imports of foreign goods. Also, to be clear, would this be packaged with a lowering of the welfare state more generally? How much would the markets move to accommodate the new tax structure, and how would that affect the revenue raised? I'd probably want to look up what economists think before having any definite opinion on this.
A national sales tax, fair tax, VAT whatever you want to call it seems economically more efficient.
I am not sure if it would lower consumption or not.
The big issue with it is it’s impossible to swap systems. I guess you could do it gradually but that probably just ends up being the government gets more revenue and spends it. Older people who paid income tax on savings get hurt with a new tax on consumption.
A lot of it feels like our roads system. Since we built everything for cars it’s difficult to swap back to trains and walkable. We can debate which is better but we have everything designed for cars now. If America got nuked, we did post-apocalypse for a few decades and then we’re back in growth mode we might choose different design routes.
But since system switch is hard it leaves these tax ideas mostly to the academics.
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I'm confused about (2). Different people in different situations are subject to different degrees of withholding, many of which concern protected class information. How then would the business offer the right wage, while maintaining privacy?
I'm also confused about stock stuff. Currently we have a hard to understand regime, but one built on some core and logical principles, like how realized and unrealized gains work, and related to how stock and passive incomes aren't the same as wage incomes. I'm not really sure how this system addresses these tensions, if at all. Is rent/housing considered a sale or service? The retail paradigm does not capture all significant financial transactions.
How does this differ from VAT tax approaches favored in the EU? Isn't this basically the same idea, implemented in a more confusing way?
And finally, couldn't this be classified as just a super-duper sales tax? If we swap our tax reliance from recurring revenue sources to one based almost exclusively on economic activity, wouldn't economic downturns be devastating, and create huge problems in how government services are provided?
Don't feel the need to respond to each or any of these, but I am curious.
I think federal taxation is already almost exclusively on economic activity? It only really uses indirect taxes (See what I'd written on Moore v. United States). That's different from the states, though.
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Looks like SCOTUS has added more days to it's current session, and might release more opinions next Friday. I've been itching for Grants Pass to come down, so that's giving me some hope.
Haven't heard about the potential Chevron reversal yet, right? Are they saving the most controversial for last? Yikes, I hope not. I really hope it doesn't reverse.
If you’re suggesting that a Chevron reversal will backfire on the right, I couldn’t agree more.
And the courts.
My probably oversimplified understanding is that we'd go from
to
and create a massive additional workload for judges and government agencies both... and private business too, as a matter of fact, because changing and unpredictable regulations are often worse for business than consistent but annoying regulations. Do I have that right?
Except that’s now how it works at all in practice. No in practice agencies scratch and claw to find a hint of ambiguity and then claim they are entitled to chevron deference. While some courts actually do a hard look, many courts just quickly pass.
Also, I work in an environment that is heavily controlled by regulations. I promise you such regulations change and change rapidly. Frequently removing the ability for agencies to take creative readings likely will lead to more stable law. At least this should be testable.
Third, even if you remove chevron you still have things like Skidmore deference. The government when it issued regulations per the APA has to explain the regulation. If the government provides a compelling argument for its position than the court will accept it. That’s different from chevron where even if the government doesn’t provide a compelling reason often the courts will have to accept it.
Finally, current admin law has it almost backwards. The courts take a much harder look at facts and a much more deferential look at law. The whole idea being the administrative state is they are experts in facts. Overturning Chevron helps (but is not the end of the story) restore the court to its proper role as the expert on law.
PS killing chevron probably will make congress write more laws if there is a desire to regulate more. That seems like a good thing to me.
Great comment. Worth noting, however, that in terms of time and caseload, currently the courts do have it easy. Reversing Chevron will almost without a doubt increase the workload on judges and leave agency workload near unchanged. I'd be highly surprised if this wasn't the case. In that sense, reversing Chevron might, as a practical matter, backfire on courts, including the SC. Isn't the "better" option that courts step up and take a "hard look" at these creative interpretations more pro-actively?
If the court is doing a hard look, then there really shouldn’t be much incremental work (ie the court already needs to use the traditional tools of statutory construction to try to determine what the text means). But the problem is if you let courts be lazy by providing Chevron deference they will be, even if you say “but we really want you to validate there isn’t a better read.”
Note the legal system writ large (as opposed to more narrow parts of law) have been taking the APA more seriously. This has caused regulations to be deemed invalid. One of the criticism ls of these approaches is that it will cause a lot of work! But the response is the law is the law. I see it similarly.
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This was also a comment from a Circuit Court (I think the 9CA) on a set of labor law decisions where the presidential appointees on the NLRB would flip flop between two sets of precedents every so often. And hence both the opinion and the opposite opinion are inside Chevron, the courts can not prevent the actual policy from bouncing back and forth every 4-8 years.
Let me see if I can find it.
Yeah. The changes are subject to State Farm review but A&C is relatively easy to get around (eg we don’t believe that is a fair reading of the law).
I think the average American doesn’t understand just how much of law making is regulatory and how relatively limited recourse there is (because ultimately there is a single executive). Gutting chevron won’t fully change that but it is, as they say, a start.
I think you are correct on your opinions. Reading me makes me feel that this is true : “Constitutional Democracy doesn’t scale”
Nothing in the regulatory state feels Democratic to me. I guess you could say it all flows thru the executive to gain Democratic legitimacy but it’s definitely not Constitutional Democracy.
If humans were smarter perhaps we could all understand the details of every regulation and run that thru our congressmen but we are not.
I feel confident saying the regulatory state would not pass muster on what the founding fathers believed they were passing. But I don’t know what the other option would be.
One improvement potentially improvement might be direct election of all the regulatory heads. You would add more partisan politics but atleast the people would be picking the heads.
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On a skim of Moore (see here for my earlier post based on the briefs):
So on the question that made the case a hot-button case, you have 4 justices saying that there is a realisation requirement, 4 1/2 punting, and Jackson sort-of-saying that there isn't. This means that a wealth tax almost certainly loses if it reaches the Court.
Other comments:
One other point. The dissent actually calls out the majority for reading the law wrong because the majority was worried about reading where the law (in the dissent’s view) required it to go. So I’m not sure we can say all 9 were very keen not to blow up the IRC. It isn’t clear Thomas felt that was needed but seemed willing to do so if his understanding of the law so required.
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It's apparently a popular opinion in legal circles these days that Pollock v Farmer's, the decision that necessitated the 16th amendment to legalize income taxes, was a terrible decision and that income taxes were always indirect taxes. This bit is, I think, a snipe in that direction, included because the 16th amendment means the Court will never get the chance to overrule Pollock itself.
I have never understood the hate, but it's a moot point now.
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I think the majority opinion dropped a ton of tea leaves suggesting a wealth tax goes the opposite way without saying so explicitly.
As I write below, the dissent reads more like they think 965 could be unconstitutional as applied even if not facially (I know that isn’t what is said). I think the other thing that bothers them even if it is out of the scope of this petition is the issue of retroactivity. Taxing income earned 30 years prior seems wrong.
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My prediction was:
I didn't go narrow enough and didn't give the liberal justices enough credit for being willing to join that narrow opinion. Likewise, I overstated just how far Gorsuch and Thomas would be willing to go. As with many decisions, the correct update is in the direction of the Justices just not actually being very radical.
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After reading the FRE at issue and the opinions in the case I think the court got this one wrong. Either the purpose of the expert witness's testimony was to be about the defendant's state of mind, which I would read 704(b) to bar, or the testimony was irrelevant and prejudicial. I guess as long as the expert doesn't say the magic words "In my opinion the defendant had intent X" they are free to imply whatever they like about the defendant's intent.
Imagine we have as a defendant a man named Charles. He is charged with intentionally killing his wife. The prosecution offers expert witness testimony to the effect of "When men named Charles kill their spouse it tends to be intentionally, rather than accidentally or negligently." That testimony would be fine under this rule, right? The testimony isn't about this Charles who is accused of killing his wife, it's about the abstract category of men named Charles who kill their spouse! Totally different!
It would be fine under the rule, but not fine under Daubert more generally because nobody is a qualified expert in "what people named Charles are thinking." The expert's opinion still has to be backed up by experience, facts, or data and you can move to strike it if it's not.
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Rahami dropped today.
It's about what I and @The_Nybbler expected, and worse a Roberts opinion at that. Roberts did "not meant to suggest a law trapped in amber", and lower courts will quite happily take his already-extensive 'analogies' to permit nearly anything. Barrett continues to parade "Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms” and promise that this isn't a blanket permission slip for lower courts to turn into an interest-balancing approach that never recognizes gun owner interests, and no one with two brain cells to rub together should believe it. The progressives continue to argue in favor of overturning Bruen (and, implicitly, Heller), and beyond that just making that blanket permission no-gunnie-interest interest-balancing test the rule instead.
There's a separate Gorsuch concurrence, but, unsurprisingly, it is not going into the fine details of esoteric interpretations in some way that might help Second Amendment causes, and instead just to announce how much the court is punting.
In theory, the concurrences draw out a large array of other challenges to the same statute that would be more suspect, but we're several years -- and several far more sympathetic cases -- into SCOTUS punting on them, there's no way to bring a challenge without risking your freedom, and no guarantee that you'd not find yourself Abramski'd even if you did. The most optimistic gloss I can read is a bit of text for Range, but Range doesn't even have cert yet, and I would not be surprised to see him GVR'd for another three-year-delay.
Tactically, domestic violence was not the battlefield that gun folks should be contesting.
They were on a good streak since Heller, but this was a bad case and you’re right it made bad law.
The Supreme Court denied cert to multiple cases with more sympathetic defendants in favor of Rahami, whose case was brought by public defenders and not any organized gun rights organization. They chose a bad case because they wanted to have as much an excuse as possible for walking back Heller and Bruin, which the lower courts have rejected.
I suspect they didn’t want to take this either but the opinion below forced their hand.
If the CA had been sensible then the court wouldn’t have had the chance.
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Is this maybe a good thing? I see no personal challenge to my gun rights living in a red state - I think large Federal gun restrictions died with the % of the electorate who owned a gun increasing during COVID/the summer of Floyd.
If blue states want to pass more restrictive laws: A. That's a plus for federalism, the only way I see to reduce the national partisan temperature B. That provides lots of fun little opportunities for research on differences in shooting and such that a unified national regulatory structure does not.
Nybbler has already gotten into the pragmatics of leaving half or more of the country a no-rights zone, but I'm going to murder this question closer to its root: I do see personal challenges to gun rights as a Red Stater.
The federal government passed -- post-summer-of-Floyd! -- a bill that banned hunter education and sports teams in public schools, and that was the unintentional bit they eventually reverted. The same law's restrictions on gunsmithing, in contrast, remain unquestioned. You have to sell a ton of guns to have the federal government break down your front door and shoot you in the head in a Red State, but the federal government also argues that it's illegal to sell one. Blue States will happily sue the companies selling firearms into the ground, fuck federal law or common sense saying otherwise.
I'd be a lot more persuaded by the 'laboratories of democracy' argument were it allowed to apply in any way that wasn't a ratchet down.
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Until they pass laws or have policies that have the benefit of snuffing out the entire interstate firearms business.
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It's not a plus for Federalism when their rights apply everywhere but yours only apply in your home state.
I think there have been inroads in some areas, ie school choice that are more red-state coded, while still taking your overall point
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Their right to abortion now only applies in blue states.
And Blues are actively undermining the court because they find that situation intolerable.
How do you mean?
The current Supreme Court situation looks more functional than it did in Mitch Mcconnell’s day.
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But unlike other “rights” most will never use or use only once the abortion “right.” Given that it is trivially easy to travel to any blue (and even many red) state, there isn’t a big restriction on this so called “right.”
Reds don't treat "small restrictions" on their "so called rights" as lightly, I observe.
Consider: most will never use their right to defend their house with lethal force.
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Yes, that's their singular loss.
Laws around soft drugs are another example, even if widely disregarded.
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It appears that by validating laws against "going armed in a way to spreads fear", they have sub silentio overruled Bruen in its entirety. But only sub silentio, so the Second Amendment is still valid for debate purposes, just not for bearing arms.
I don't share the blackpilled reading of this case that I'm seeing here. The vast, vast majority of gun owners have nothing to worry about from the narrow holding of this case. Even defendants who are similarly situated to Rahimi can plausibly argue for a different result in future cases.
First, Rahimi raised a facial challenge to the law. The only question before the Court, therefore, was whether the statute was unconstitutional in every single conceivable application. This means any future defendant may still raise an "as-applied" challenge to the law and argue that it shouldn't apply to their case. Since Rahimi's case was basically as bad as it could possibly be, it should be relatively easy to distinguish.
Second, it seems Rahimi did not contest the evidence of his numerous violent crimes. Even if a future defendant is accused of similarly egregious conduct, if he asserts his innocence, that alone would meaningfully differentiate his case from Rahimi's. To the extent gun owners are worried about "red flag laws" eroding due process, that issue was not addressed in this case, so it is fair game for a future challenge to the statute. The Court explicitly makes this point in footnote 2.
Third, the Court is careful to explain that historical gun regulations like the "surety and going armed" laws presumed that people had a right to carry guns in public. Their prohibitions on gun possession were limited to temporary disarmament of specific individuals based on a particularized judicial determination of their dangerousness. Meaning legislatures cannot use those cases, or Rahimi, as an excuse to prohibit broad swathes of the public at large from possessing or carrying guns.
Fourth, the Court explicitly rejects the government's argument that the 2A only applies to "responsible" citizens, whatever that means.
In no way does this case overrule Bruen, sub silentio or otherwise. The historical "going armed" laws, as already addressed in Bruen, did not prohibit public carrying of weapons for self-defense, so merely "validating" such laws (their validity was never challenged, just the degree to which they supported modern regulations by analogy) won't change anything.
I know progressive judges in the lower courts will grasp at any straw to ban guns, but that was already true before this case, and the Court expressly leaves open enough roads to challenge anti-gun laws that I don't see this opinion as realistically improving the lower courts' ability to hollow out the 2A.
I totally agree. But I think there's a subtle additional thing going on, similar to what happened with the left wing courts in the 1960s. There you had an opinion like Griswold whose central holding held on for a while (at least 60 years) but whose reasoning and implied test did not survive. I don't think we have a good word for this -- a case whose holding stands but whose reasoning and methodology were replaced later. It wouldn't be right to say it was overruled or distinguished.
So by analogy, I think there is a strong majority on the Court for the central holding of Bruen (or the Bruen/McDonald/Heller line, if you will) but there may be a subtle shift in the specific test that it endorsed. I don't think there's 6 votes for a balancing test or anything like that, but I think there a few pro-Bruen-the-holding votes that would rather endorse a different test than the historical test that it laid out.
If I'm playing legal realism, I think the right wing of the court made a mistake assigning Bruen to CT rather than Roberts or Alito just like Griswold should not have been to Douglas. Not because I think CT is the lesser jurist, just because his opinion doesn't command 6 votes for its method, only its conclusion.
EDIT: Allegedly Roberts and Kav wouldn't even sign on to the original Bruen until it was changed. We'll never know what was in the draft or what the changes were, but it seems to me that having either Roberts or Kav author the majority opinion (to which CT could concur in judgement-plus-I-would-go-much-further, as he does) would have been better.
[ And if I may, ping /u/gattsuru for his usually insightful thoughts. ]
Griswold made contraceptives legal. Contraceptives are still legal in all 50 states. Bruen/McDonald/Heller did nothing. In New York City, you went from not being able to carry a gun because you couldn't get a carry permit, to perhaps being able to get a carry permit (though it's not clear that they're actually issuing them) but it no longer allows you to carry a gun. Griswold may have suffered some damage; Bruen was dead on arrival and Rahimi is its quiet burial.
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No? You don't think every appeals court save the Fifth Circuit is going to read into the court's endorsement of the historical significance of laws against "going armed the the terror of the public" justification for a general prohibition on bearing arms publicly? Because I think it's pretty clear from recent history that it's exactly what they'll do.
The court said that the prohibition was justified if the court made a finding that the person subject to the injunction had committed domestic violence or if the court enjoined him from committing domestic violence (even if he had not committed it). That's sufficient to cover essentially all applications of the law. A court orders a man (and yes, 90+% of the time it will be a man, except in jurisdictions where such injunctions are automatically reciprocal -- and the courts will indeed carve out an exception for that case, if it comes up) to not do something already illegal, and he loses his Second Amendment rights.
The appeals courts will simply split hairs and say that those laws support not a complete prohibition, but whatever prohibition is on the table in the given case. Can't carry openly in one case (terrifies the public). Can't carry concealed in another (carrying concealed indicates you're up to no good). Can't carry this or that gun (too terrifying). Can't carry more than so much ammo (terrifying again). And the Supreme Court will respond to this with cert denied, as they have been doing.
Edit: When I, a citizen of the United States and the state of New Jersey, can walk into a gun store, buy a modern handgun and rifle, and carry both of them, loaded, across the state of New Jersey and to my office in New York, using either my own private transportation or public transportation, without running afoul of any laws, THEN I will believe the Supreme Court takes the Second Amendment seriously. Not until then.
Well, it turned out that putting all the “conservative” Catholics on the Supreme Court actually meant they only cared about that one Catholic issue (abortion) and issues related to that issue (religious freedom) and not, in fact, any other conservative policies.
The right confused the zealotry with which devout Catholics hated abortion and were willing to do anything, study anything, join any political movement and climb any hierarchy to restrict it for actual commitment to any other aspect of American conservatism. Now it turns out they’re just libs who hate abortion and have a mild (though likely not enough to rock the boat) distaste for gay marriage, but are otherwise pro-DEI, pro-immigration, pro-gun control and so on. Shocked Pikachu indeed.
Ah, Gorsuch is the most consistent conservative on the court.
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It turns out that, save Justice Thomas, and perhaps Eugene Volokh, there are no elite conservatives in the field of law.
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Gonzales v. Trevino
8-1
This is a first amendment case (debatably).
The key question upon which the per curiam opinion rejects it is whether Gonzales has to point to specific instances of people not being prosecuted by similar conduct, and the court rules that no, that isn't required. That there are no past cases over a long enough duration is evidence enough. It does not address the second question of whether Nieves applies only to split-second arrests.
Alito's concurrence is lengthy compared to the per curiam: five versus sixteen pages. He provides a more thorough analysis of what exactly is going on in Nieves and argues that therefore it should include split-second arrests.
Kavanaugh's agrees with the opinion as a matter of law, but thinks it not really relevant to the specific case.
Jackson's which Sotomayor signs onto, says that there are other bases by which they can decide that it is retaliatory arrest, such as unusual procedures, and that they don't want to exclude those.
Thomas argues that she needs to show a lack of probable cause, and that the whole understanding that everyone's operating under is wrong, because they're using the wrong common law analogues.
Chiaverini v. City of Napoleon
6-3
This is a fourth amendment case (debatably).
In addition to what was said above, it should be noted that they all agree against the 6th circuit's claim that there is a categorical rule that if any outstanding charges remain, it's automatically okay for them to have been seized. The court (with Kagan writing) decides to leave it at that, and return it to the 6th circuit to reevaluate between three different possible courses: first, that such a warrant is tainted by the presence of a single bad charge, and so the seizure is illegitimate (this is about seizures because it's a fourth amendment claim). Second, that it should be using a but-for: would the judge have detained the person if the bad charge were not included. And third, could the judge have done so. The court leaves it at that, and lets the Sixth circuit decide.
Thomas (joined by Alito) argues that malicious prosecution claims can't be based on the fourth amendment. He rejects Thompson, a recent case on the matter. He argues that it's fairly different from an unreasonable-seizure claim, which is what the fourth amendment is about. Malice and reasonableness are different questions, as are seizures and prosecutions.
Gorsuch, like Thomas, argues that this shouldn't really be a fourth amendment thing. Contra what @theCircuitWeakman says above, Gorsuch does affirm that there is a constitutional basis for this, but he would put it in the due process clause of the fourteenth amendment solely, instead of incorporation of the fourth amendment in that clause.
Diaz v. United States
6-3
In this case, there was testimony given in a trial that most drug-runners know that there are drugs in their vehicle. The question is whether that's okay, or whether that's too close to asserting things about the state of mind of Diaz, as that's not allowed. Thomas, with most of the court, argues that it's fine, as it isn't making a claim about all couriers (and so wouldn't be a claim about Diaz's state of mind).
Jackson agrees, and writes a concurrence to argue that "Rule 704(b) is party agnostic," saying that neither side can witness directly to mental state, but both can present evidence, over its likelihood, as the defendant is a member of some group.
Gorsuch, joined by Sotomayor and Kagan, argues that this goes to far, and, in effect is about the mental state. At one point he mentions the question of what if it were 99%, instead of merely saying most, or if it were talking about something that were generally the case, instead of true of most. That is, there are stronger statements than most, that are less strong than all, that might seems problematic.
Moore v. U.S.
I still need to get around to reading it; it's over 80 pages between everything. It's on taxes.
The tax case dealt with whether Section 965 (a deemed repatriation of certain foreign corporations) was constitutional. The big question here was on the realization requirement and this case was really a staking horse for a wealth tax. While the court upheld 965 on the grounds that income was in fact realized and then attributed to the shareholders, it took great pains to suggest no a wealth tax is a direct tax and therefore would require capitation.
The dissent argues that this tax is unlike most other taxes in that it taxes income of the foreign corporation earned in prior years; indeed in years where the owner that owned the stock on a particular date may not have owned the stock. The dissent would say there can only be a constructive recipient (allegedly different but probably in practice similar to the majority’s attribution) when there are close fsctors of control. The dissent — if they knew about tax — could analogize — between CFC taxation and PFIC taxation.
The problem with the dissent is that problem seems more like an as applied v facial challenge. In truth, I think the dissent didn’t like that congress effectively wrote a rule that imposed taxes on CFC’s income going back potentially 30 years. There is more than a hint of retroactivity though the challengers dropped this argument in their cert petition.
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Great write-up as usual.
I've thought a bit about Diaz, and one issue that doesn't seem to have been addressed by anyone (probably because it wasn't raised by the parties, if I had to guess) is why the government even needed expert testimony on this point in the first place. It sounds like the expert's opinion was "Drug cartels typically don't hide half a million dollars worth of drugs in the car of some unwitting rando and then just hope that it makes it across the border and that they can find a way to retrieve it." This seems like ordinary, common-sense reasoning, moreso than specialized technical knowledge that the jury needed an expert to weigh in on. I get suspicious when the government brings in an "expert" to testify about something that should be obvious to everyone; it feels like they're trying to take advantage of the "expert witness" designation to put extra weight behind the government's theory of the case, rather than to explain some complicated topic or express some scientific opinion that jurors ordinarily wouldn't understand.
By the same token, however, the prejudice from eliciting such everyday-common-sense views from an expert witness is fairly small; they're just expressing an argument that the prosecutor would have made anyway and that the jury likely would have accepted. So while it may be overreaching by the prosecutor, it's probably harmless in most cases.
Diaz's claim during trial was that she'd gone south of the border to meet a new boyfriend, and he'd let her borrow his car. If you believed this defense, the theory is less 'just hope' and more 'meet at predesignated point'. These sort of scams do exist, sometimes even at higher values, and indeed it's actually a bit of a struggle for courts to handle the border cases where the mule may have been willfully blind or where the arguments are more borderline.
((That said, for this specific case, Diaz seemed to have made up almost all of this, most of it not terribly credibly, including the boyfriend that supposedly loaded the car up to start with.))
So the need for an expert witness makes more sense than at first glance -- there's a lot about general drug trafficking approaches that aren't common knowledge or would be counterintuitive to common knowledge. And the question of what tactics drug traffickers use is the sort of thing that would be better considered under expert witness testimony, and could have been more appropriately discussed without a lot of nudge-and-winking about the defendant.
I'm still not a huge fan, but that's more because the scope of domain expertise is ugly. The fed here was testifying as an expert on gang trafficking of drugs, and reading through a search affidavit from an unrelated case gives a pretty lengthy and impressive personal record as part of investigatory task forces. It's... less compelling as a matter of his expertise on the full breadth of drug trafficking tactics, especially for the sort of broad statistical analysis he's giving here.
((Though the rule applies both ways, at least in this specific case, as Jackson points out; Diaz's defense brought in a car mechanic who was allow to testify about how most people wouldn't notice the modifications to the car here. But I'm skeptical that the average decision is fully evenhanded, and Jackson's asides about other defenses leave me a little unsated given how weak the protections against dueling experts are.))
((But in turn, that wasn't the question raised before the court, here.))
I remember hearing about this case (this was like 20 years ago; I may be wrong on a couple of details) where an Australian couple "won" a "free getaway" to Indonesia with suitcases provided. They noticed that the suitcases were significantly heavier when provided for the return trip than they'd been on the outgoing trip, and alerted the local police who pulled them apart and indeed found they were full of drugs. Thankfully, the couple didn't end up getting shot anyway, though IIRC the police thought about it.
Yeah, it's been a long-standing issue, sometimes resulting in serious convictions where courts believed that the 'mule' should have been more suspicious.
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I'm not a criminal lawyer, but I suspect they had to put on the expert because they bore the burden of proof on intent. If they didn't present any evidence of intent, they would presumably lose the criminal equivalent of a post-trial JMOL motion based on lack of evidence.
They may have been worried about that, but if so I don't think their fears were realistic. Unless there is a confession, prosecutors almost never have direct evidence of intent. So they typically rely on circumstantial evidence. In this case, Diaz had actual possession of the car; she told an implausible story about the car belonging to her boyfriend, but she claimed not to know his address or phone number; and she refused to answer questions about the multiple phones found in her car. I think those circumstances would have been sufficient to prove intent, without needing a mind-reading expert. But the government may well have chosen to err on the side of caution--although, in so doing, they created an appellate issue they easily could have lost.
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